IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.5472 of 2018 (OM)
Date of decision: 11.02.2020
Hardeep Singh ..Appellant
Versus
Paramjeet Kaur ..Respondent
CORAM: HON’BLE MRS. JUSTICE DAYA CHAUDHARY
HON’BLE MRS. JUSTICE MEENAKSHI I. MEHTA
Present: Mr. Rajiv Joshi, Advocate
for the appellant.
Mr. P.P.S. Tung, Advocate for
Mr. G.S. Toor, Advocate
for the respondent.
***
Daya Chaudhary, J.
Appellant-Hardeep Singh is aggrieved by judgment dated
04.07.2018 passed by learned Additional Civil Judge (Senior Division)-
cum- Guardian Judge, Ludhiana, whereby petition filed under the Guardian
and Wards Act and Hindu Minority and Guardianship Act, 1956 for the
custody of minor child, namely, Satnam Singh Samra, has been allowed
partly.
The appellant filed a petition before learned Additional Civil
Judge (Senior Division)-cum-Guardian Judge, Ludhiana stating therein that
marriage between the parties was solemnized on 28.09.2003. Three children
i.e. two daughters and one son, namely, Noorpreet Kaur, Harmanpreet Kaur
and Satnam Singh Samra, respectively, were born. Some differences arose
between the parties and both the female children were residing with their
father Hardeep Sngh and son was residing with mother-Paramjeet Kaur. It
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was also mentioned in the petition that respondent-wife was having illicit
relations with some other person and the minor son was not being looked
after properly, which had affected the upbringing as well the education of
the child. It was also alleged that the minor was being neglected whereas for
having custody of minor child, his welfare was required to be taken into
consideration. The petition filed by the appellant-Hardeep Singh was partly
allowed vide order dated 04.07.2018 by giving visitation rights.
Aggrieved by said judgment, the present appeal has been filed
by raising various grounds.
Learned counsel for the appellant submits that the welfare of
the minor child has not been taken into consideration as there was specific
allegation regarding negligence on the part of respondent-wife. Learned
counsel further submits that neither the respondent-wife chose to contest the
proceedings nor any reply was filed. In absence of appearance of the
respondent-wife, an adverse inference should have been drawn against her
and claim of the appellant should have been considered. Learned counsel
also submits that the Guardian Court should have considered that the minor
child has a right to meet his siblings, who are in care and custody of
appellant-father.
Learned counsel for the respondent has opposed the
submissions made by learned counsel for the appellant by stating that the
detailed speaking order has been passed and there is no infirmity in the
impugned judgment. A specific finding has been given that the respondent-
mother is taking care of the minor son and it cannot be said that the welfare
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of the minor child has not been taken care. The visitation rights have been
granted to the appellant-father.
Heard arguments of learned counsel for the parties and we have
also perused the impugned judgment as well as other documents available
on the file.
Facts of the case are not disputed. Both the parties are having
three children i.e. two daughters and one son. Both the daughters are
residing with appellant-father and minor son is residing with respondent-
mother. It has not been mentioned that how the welfare of the minor son
cannot be taken care by the respondent-wife.
The role of the mother in the development of child’s personality
cannot be doubted. The company of the mother is the most natural thing for
a child so long as the mother does not suffer from any disqualification. It is
only in such circumstances when she is unable to take care of the child due
to financial restraints, otherwise the wife is having love and affection,
which is necessary for care and bringing up of the minor child. The
company of the mother is always full of love and affection and it cannot be
said in any manner that the interest of the minor child is not being looked
after. No doubt the company of both parents is required for the proper care
and development of the personality of the children but in case, some
differences arose between the parties, which are unavoidable due to any
circumstances, it is necessary for the Courts to come to a judicial decision
by considering the question of welfare of the children. Simply by saying that
father is having more liking and child is being ignored by the mother cannot
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be a factor to have the custody of minor child.
It has been observed by Hon’ble the Apex Court in Rosy Jacob
vs. Jacob A. Chakramakkal, AIR 1973 Supreme Court 2090 that in case of
conflict or dispute between the mother and the father about the custody of
their children, the approach has to be different. The children are not mere
chattels and they are not mere play-things for their parents. The prime
consideration is the welfare of the children so that they may grow up in a
normal balanced manner to be useful members of the society. In case of
dispute between the mother and the father, a balance is required to be
maintained, which is the requirement of welfare of the minor children.
In Division Bench judgment of the Karnataka High Court in
Chethana Ramatheertha vs. Kumar V. Jahgirdar, 2003(3) RCR (Civil) 52,
the following observations have been made in para No.25:-
“25. The role of the mother in the development of a
child’s personality and her ability to do so can never be
doubted. In fact, a child gets the best protection and
education only through the mother even in nature. It is a
most natural thing for any child to grow up in the
company of one’s mother. In fact the question always
should be as to whether a child should be deprived of the
company of the mother. Company of the mother is the
most natural thing for a child. That is what nature has
evolved over a period of generations. So long as the
mother does not suffer from any disqualification, she
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does not disentitle herself to bring up her child. It is only
because of her own misconduct or misdeeds or when she
is not in a position to take care of the child due to
reasons financially or otherwise, the custody should be
shifted from the mother. Neither the father nor any other
person can endow the same kind of love, affection, care
and sympathies to a child that as of a mother. Company
of a mother may be in fact much more valuable
particularly to a growing up female child and until and
unless there are compelling and justifiable reasons, a
child should not be deprived of the company of the
mother. The question is not so much as to whether father
or mother gets the custody of the child, but as to whether
the child should be deprived of the company of the
mother. In fact, it can be presumed as a proposition of
considerable weight and justification that the company
of the mother is always in the welfare of the minor child
until and unless the contrary is established. This
basically we think, should be the approach of any Court
while considering the question of granting the custody of
a minor child to either of the parents. The mother,
because of her position alone, scores over the father and
to alter this position, it calls for definite material
indicating the disqualification or disentitlement on the
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part of the mother vis-a-vis the adverse interest to the
child or the welfare of the child being put to jeopardy.”
While deciding the issue of custody of minor, the Court is to
see the welfare by considering it as first and paramount consideration and
not the legal right of any particular party. While making such order for
appointing a guardian for the person of minor, the test requires to see as to
what order and under what circumstances for securing the welfare and
happiness of the minor can be. It is to be seen as to with whom the minor
will be happy. It is also to be seen as to who is most likely to contribute to
the well-being of the minor and also as to who is likely to bring up and
educate the minor in the manner required to develop the entire personality,
worthy of living, keeping the interest, well-being and happiness of the
minor. The proper custody depends upon the circumstances, and in
particular, upon the minor’s position and prospects in life.
Hon’ble the Apex Court in Dhanwanti Joshi vs Mahadev
Unde, 1999(1) Femi-Juris CC 336 (SC) has held as under :-
” …The welfare of the child is not to be measured by
money alone nor by physical conform only. The word
`welfare’ must be taken in its widest sense. The moral
and religious welfare must be considered as well as its
physical well-being. Nor can the ties of affection be
disregarded.” … As to the “secondary” nature of
material considerations, Hardy Boys, J., of the New
Zealand Court said in Walker v. Walker and Harrison,
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(See 1981 N.Z. Recent Law 257) (cited by British Law
Commission, working paper No.96, para 6.10)…
“Welfare is an all-encompassing word. It includes
material welfare, both in the sense of adequacy of
resources to provide a pleasant home and a comfortable
standard of living and in the sense of an adequacy of
care to ensure that good health and due personal pride
are maintained. However, while material considerations
have their place they are secondary matters. More
important are the stability and the security, the loving
and understanding care and guidance, the warm and
compassionate relationship, that are essential for the full
development of the child’s own character, personality
and talents.”
In a case of custody of a minor child, the dominant factor for
consideration before this Court is the ‘welfare’ of the child, which cannot be
measured by money or by physical comfort alone. The word ‘welfare’ has to
be taken in its widest sense. The moral and religious ‘welfare’ of the child as
well as his physical well being and the tie of affection are not to be
disregarded.
In Gaurav Nagpal vs. Sumedha Nagpal, 2008(4) RCR (Civil)
928 holding that the paramount consideration is welfare of the child and not
right of parents under a statute, the law enunciated by the Apex Court was
summed up as under:-
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“(1) Grant of custody of minor child by court–
Though the provisions of the special statutes which
govern the right of the parents or guardians may be
taken into consideration, there is nothing which can
stand in the way of the Court exercising its parens
patriae jurisdiction arising in such cases.
(2) Father is natural guardian, but for custody of child
paramount consideration is as to what is conducive to
welfare of minor.
(3) When conflicting demands are made by parents,
court then should not give emphasis on what the parties
say – Court has to exercise a jurisdiction which is aimed
at welfare of minor.
(4) Children are not mere chattels nor are they toys for
their parents.
(5) Even if father loved the children and was not
undesirable person would not necessarily lead to
conclusion that welfare of children would be better
promoted by granting custody of children to father.
(6) In considering the question of welfare of minor, due
regard has of course to be given to the right of the father
as natural guardian but if the custody of the father
cannot promote the welfare of the children, he may be
refused such guardianship.”
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Similarly, Hon’ble the Apex Court in Mausami Moitra
Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673 has observed as under: –
“19. The principles of law in relation to the custody of a
minor child are well settled. It is trite that while
determining the question as to which parent the care and
control of a child should be committed, the first and the
paramount consideration is the welfare and interest of
the child and not the rights of the parents under a
statute. Indubitably the provisions of law pertaining to
the custody of a child contained in either the Guardians
and Wards Act, 1890 (Section 17) or the Hindu Minority
and Guardianship Act, 1956 (Section 13) also hold out
the welfare of the child as a predominant consideration.
In fact, no statute, on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor.
20. The question of welfare of the minor child has again
to be considered in the background of the relevant facts
and circumstances. Each case has to be decided on its
own facts and other decided cases can hardly serve as
binding precedents insofar as the factual aspects of the
case are concerned. It is, no doubt, true that father is
presumed by the statutes to be better suited to look after
the welfare of the child, being normally the working
member and head of the family, yet in each case the
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Court has to see primarily to the welfare of the child in
determining the question of his or her custody. Better
financial resources of either of the parents or their love
for the child may be one of the relevant considerations
but cannot be the sole determining factor for the custody
of the child. It is here that a heavy duty is cast on the
Court to exercise its judicial discretion judiciously in the
background of all the relevant facts and circumstances,
bearing in mind the welfare of the child as the
paramount consideration.”
In the present case, all the factors have been taken into
consideration and a detailed speaking order has been passed. It cannot be
said in any manner that the findings are perverse or stand of the appellant
has not been taken into consideration. Although there are allegations of
adultery but the same have not been proved. Minor son is residing with the
respondent-wife since the time of separation of the parties. Moreover, two
minor daughters are already residing with the appellant-husband.
Accordingly, keeping in view the facts as well as the ratio of
judgments as discussed above, we find no merit to interfere with the
impugned judgment and the present appeal is hereby dismissed. However,
keeping in view the interest of children and the parties, the appellant-
husband along with both the daughters is given visitation rights to meet the
minor son once in a month i.e. second Sunday of every month between
2:00 pm to 5:00 pm in a nearest Mall to the house of the respondent-wife in
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Ludhiana. It is also directed that the respondent-wife will not prevent the
child from receiving any gift that may be given by the appellant-husband. In
addition to visit, which is once in a month, the appellant-father along with
both the daughters is also at liberty to meet the minor son on festival like
Raksha Bandhan, Diwali and Holi.
(DAYA CHAUDHARY)
JUDGE
11.02.2020 (MEENAKSHI I. MEHTA)
neetu JUDGE
Whether speaking/reasoned Yes
Whether Reportable Yes
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